Family Formation & Assisted / Third Party Reproduction (“ART”)

Family Formation

ART law is a rapidly expanding and ever-changing area of law influence by, among other areas, family law, contract law, statutory interpretation, estate planning, probate, litigation, etc. CLS’ focus, along with our commitment to frequent education and peer interaction, permits us to better understanding to the multi-disciplinary interplay of different areas of the law and work to provide practical, cost and time-efficient solutions.

CLS is completely independent. We do not own a surrogacy agency and/or gamete agency/bank nor are we their employees or agents. Our ethical responsibility remains firmly to our clients and their interest rather than any other party. The parties to an ART arraignment have current and future legal and privacy interest. It is important to begin working with an ART attorney as early as possible in order to plan rather than react.

We are not constrained by the deadlines imposed by adverse parties, attending court hearing and/or the “billable hour”. We have the time and bandwidth to get to know our clients and their family building journey. We use this valuable information in our representation of clients to produce a result that protects and respects all stakeholders in a family formation journey.

As one of the only law firm in the nation with both ART and commercial law competencies. CLS also provide Fertility-Focused SMEs a unique opportunity to work with legal counsel that provides insights that cannot be found in larger law firms.

Who We Serve

CLS represents and/or collaborates with:

  • Family Building Individuals and Committed Partners
  • Gestational and Traditional Surrogate
  • Gamete Donors
  • Fertility-Focused Medical Practices
  • Surrogacy and Gamete Agencies
  • Fertility- Focused Small and Mid-Size Enterprise (SME)
  • Fertility- Focused SME Owners, Founders and Funders
  • ART-conceived Individuals

Core Competencies

  • Drafting and Negotiating Assisted Reproduction Agreements
  • Gestational Surrogacy
  • Traditional Surrogacy
  • Egg (Ovum) Donation
  • Sperm Donation
  • Embryo Donation
  • Co-Parenting
  • Pre and Post Nuptial Agreements
  • Alternative/Modern Family Structures
  • General and Reproductive Estate Plans
  • Parental Rights and Post-Birth Issues
  • Pre and Post Birth Parentage Orders
  • Birth Certificates Amendments
  • Third Parent Legal Recognition
  • Adoption (Second Parent, Step-Parent, Kinship)
  • Temporary Powers of Attorney/Custody
  • Negotiation of Labor and Delivery Expenses
  • Health Insurance Reviews and Appeals
  • Fraudulent/ “Wrongful” Conception
  • Fertility Related Fraud
  • Starting and Operating a Fertility-Focused SME
  • Pre and Post Birth Parentage Orders Drafting Agency/Clinic Agreements
  • Errors and Omissions Consulting
  • Regulatory Compliance and Licensing
  • M&A Consulting Due Diligence

Assisted Reproduction in Nevada

Gamete Donation

Gamete Donation (compensated, uncompensated, known, unknown and hybrid) is legal and enforceable in Nevada. Statutory law recognizes the right of a women to relinquish her ownership in her eggs for compensation and of third parties to take ownership of these eggs. Nevada law also recognizes that children created with donor eggs are exclusively the children of the Recipient Parent(s). However, without a written egg donor agreement between the parties, ownership of the egg(s) will not transfer to the Recipient Parent(s) and the donor (or her spouse/partner) may retain parental rights in those eggs.

Gestational Surrogacy

In Nevada, surrogacy is open to anyone! Anyone can build their family through surrogacy or help Intended Parent(s) by serving as a surrogate REGARDLESS of their:

  • Martial status
  • Familial size/status
  • Citizenship
  • Residency
  • Lack of any Genetic connection to the Resulting Child(ren)
  • Sexual Orientation

Assisted Reproduction in Utah

Gamete Donation

Gamete Donation (compensated, uncompensated, known, unknown and hybrid) is legal and enforceable in Utah. Statutory law recognizes the right of a women to relinquish her ownership in her eggs for compensation and of third parties to take ownership of these eggs. Utah law also recognizes that children created with donor eggs are the children of the Recipient Parent(s). However, without a written egg donor agreement between the parties, ownership of the egg(s) will not transfer to the Recipient Parent(s) and the donor (or her spouse/partner) may retain parental rights in those eggs.

Gestational Surrogacy

Gestational Surrogacy in Utah is limited to heterosexual and same-sex married couple. Single intended parents and unmarried couples cannot not be able to use gestational surrogacy in Utah to grow their family.

The Utah statute sets forth a specific framework that you and your gestational surrogate must follow before the embryo transfer takes place. The statutory requirements include:

Intended Parents

  • Be 21 years of age or older
  • Be Married
  • At least one of the Intended Parents must have contributed gametes to the embryo(s) transferred to the Gestational Surrogate
  • Have completed a home study unless waived by the court
  • Participate in mental health counseling prior to the contract

Surrogates

  • Be 21 years of age or older
  • Be a resident of Utah for at least 90 days prior to executing a Gestational Carrier Agreement
  • Be a gestational surrogate only (no traditional surrogacy)
  • Not be receiving state assistance
  • If married, her husband’s sperm cannot be used in the embryo
  • Participate in mental health counseling prior to the contract
  • Have had at least one pregnancy and delivery and be medically capable of carrying another

A Gestational Carrier Agreement is not enforceable in Utah until the Intended Parents petition the court to validate the agreement. Without validation of the Agreement, the court will not issue a parentage order upon the birth of your child. Utah law allows for Intended Parents to validate the Agreement anytime after the execution of the Gestational Carrier agreement so you will have to work with your attorney to decide when its the right time to file.

Upon birth of your child, the lawyers will notify the court of the birth of the child and prepare the order of parentage for the court’s signature. This parentage order will secure your legal rights and direct that only your name be placed on the baby’s birth certificate.

Your birth certificate will be mailed to you a few weeks after the birth (if you need the birth certificate sooner, we can help have it expedited for you, or help you figure out where to pick it up in person).

Traditional Surrogacy

Traditional Surrogacy, in which the surrogate/carrier is related to the child she is carrying on behalf of the Intended Parent(s), is not recognized and/or governed in Utah by statute or case law. In addition to any private agreement, an adoption and termination of the surrogate/carrier parental rights.

Assisted Reproduction in New Jersey

Gamete Donation

Gamete Donation (compensated, uncompensated, known, unknown and hybrid) is legal and enforceable in New Jersey. Statutory law recognizes the right of a women to relinquish her ownership in her eggs for compensation and of third parties to take ownership of these eggs. New Jersey law also recognizes that children created with donor eggs are exclusively the children of the Recipient Parent(s). However, without a written egg donor agreement between the parties, ownership of the egg(s) will not transfer to the Recipient Parent(s) and the donor (or her spouse/partner) may retain parental rights in those eggs.

 

Gestational Surrogacy

On May 27, 2018, New Jersey Governor Phil Murphy signed the New Jersey Gestational Carrier Agreement Act. This groundbreaking legislation effectively overturns a 1986 New Jersey Supreme Court ruling in the infamous Baby M case where the court declared gestational carrier agreements unenforceable in New Jersey. The new law is effective immediately.

Similar to other modern surrogacy legislation nationwide, the Act recognizes the Intended Parents’ parentage once a GC Agreement that fulfills the Act’s requirements is signed. Those requirements include:

  • Medical and psychological evaluation of the Gc
  • Independent legal representation of the IP(s) and GC
  • Express language in the contract concerning custody and parentage of the child, the IPs duty to support the child and the GC’s right to choose her doctor and/or other licensed medical professionals providing her care.

The Act allows a GC to receive payment for the reasonable expenses she incurred in connection with her performance under a GC Agreement including payments for food, clothing, medical expenses, housing, legal expenses and/or counseling services (religious, psychological, vocational, etc.) during the pregnancy and her postpartum recovery.

The Act also provides for pre-birth orders to be granted, birth certificates to be issued with the IPs information without need to amend at a later date and does not require a hearing to be held if the petition for the PBO is unopposed.

 

Traditional Surrogacy

Traditional Surrogacy, in which the surrogate/carrier is related to the child she is carrying on behalf of the Intended Parent(s), is not recognized and/or governed in New Jersey by statute or case law. In addition to any private agreement, an adoption and termination of the surrogate/carrier parental rights.

Assisted Reproduction in New York

Gamete Donation

Gamete Donation (compensated, uncompensated, known, unknown and hybrid) is legal and enforceable in New York. Statutory law recognizes the right of a women to relinquish her ownership in her eggs for compensation and of third parties to take ownership of these eggs. Utah law also recognizes that children created with donor eggs are the children of the Recipient Parent(s). However, without a written egg donor agreement between the parties, ownership of the egg(s) will not transfer to the Recipient Parent(s) and the donor (or her spouse/partner) may retain parental rights in those eggs.

 

Gestational Surrogacy

On February 21, 2021, New York’s long-time ban on compensated gestational surrogacy ends as the New York Child-Parent Security Act (“CPSA” or the “Act”) becomes effective, providing those New Yorkers who rely upon assisted reproductive technology (“ART”) in order to have children, a far easier path to establishing their legal parental rights.

The Act is detailed and comprehensive, providing clear procedural requirements (which must be followed) to ensure the legality of the gestational surrogacy, and therein secure, in the simplest manner possible, the legal relationship between infant and intended parent. In gestational surrogacy, the gestational carrier cannot be biologically related to the child she is carrying, and, in New York surrogacy arrangements where the surrogate provides/provided the egg, continue to be prohibited.

Prior to the passage of the CPSA, future parents needing the assistance of a compensated surrogate to have a child had no choice but to engage a surrogate who resided and gave birth to the child outside of New York. Costly adoption proceedings were thereafter necessary to secure the legal relationship between the new parents and their child.


The CPSA replaces all that with a simple procedure to obtain a pre-birth judgment of parentage, thereby establishing and fixing the legal relationship between parent and child from birth.The Act is gender and marriage neutral (closing old gaps in the law) and determines parentage by reference to the intention to parent rather than a genetic connection that may or may not exist. The Act also addresses disputes arising as a result of cryopreserved embryos that remain after the dissolution of a marriage or non-marital relationship and provides a clear means for the couple to address the issue.

Finally, the Act protects not only the child and intended parent(s), but importantly creates a “surrogate’s bill of rights,” setting a new standard for the protection of gestational surrogates, giving them: access to their own independent legal counsel; the right to make health and welfare decisions concerning themselves and the pregnancy; the right to health insurance coverage, life insurance, and psychological counseling; and, the right to decide not to proceed with the pregnancy without any penalties.
At least one of the Intended Parents must be a resident of New York in order to avail themselves of the statute. This is just one example why Intended Parents considering the use of a gestational surrogate should be aware of the expansive changes in law provided by the CPSA, and retain Counsel well versed in the new law, its requirements and complications in order to ensure as trouble-free a process as possible.

 

Traditional Surrogacy

Traditional Surrogacy, in which the surrogate/carrier is related to the child she is carrying on behalf of the Intended Parent(s), is not recognized and/or governed in New York by statute or case law. In addition to any private agreement, an adoption and termination of the surrogate/carrier parental rights.

Conscious Coupling Compact

Coming soon.

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